Whether it’s a problem for us or them is the tacit heart of Orin Kerr’s fascinating question as to the limitations on seizures of digital evidence under a search warrant. He does a great job of setting up the problem:
This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants.
In the application for a search warrant, and in the warrant itself, there will be a description of the property to be seized together with a justification for why there is probable cause to do so. The descriptions tend to be incredibly vague and backward, such as “all evidence of narcotics sales.”
Hardly much of a limitation, but the argument is that agents can’t know what the evidence will be before they find it, so they can’t describe it with any greater particularly than its outcome. For those unaware, this means that they will physically seize the baggies used to hold junior’s sandwich for lunch at school, because baggies can also be used to package drugs. See how backward reasoning becomes its own justification?
But with a computer, the problem of vagaries is not merely internally compounded, but gives rise to a secondary problem that doesn’t (well, shouldn’t in any event) exist in the physical world. The agents seize a computer under the guise it contains evidence of some crime, but they don’t just seize the files or folders that are arguably evidence, they seize it all.
That means everything. A person’s entire digital world is now in the government’s hands. Not because there is any authority to seize their entire world, but because it’s all on the same hard drive. And there may well be other people’s lives on that drive, pictures, records, personal communications, of people who have nothing to do with whatever it is the government is after. Their lives too are seized.
Once seized, the government then goes through it. They may search for key words in content or file names, or they may look at everything, or whatever things they feel like looking at. Including pictures or medical records that are deeply personal and wholly uncriminal. Even those belonging to people having nothing to do with any crime. They get it all and somebody yells out, “make the popcorn, guys.” Well, maybe not popcorn, but you get the idea.
This is the general warrant notion, that the government asked for one thing based on one reason, then took everything In the world. What to do about it?
This article argues that the Fourth Amendment should be interpreted to impose a use restriction on nonresponsive data seized during the execution of computer warrants. After reviewing the various ways courts could limit the execution of computer warrants, it concludes that use restrictions are the best way to restore the traditional limits on searches for the new technological environment of computers.
By use restrictions on nonresponsive data, Orin means that the government should not be able to use nonresponsive data, though its unclear whether he means it shouldn’t be admissible in evidence or shouldn’t be used in any fashion, such as using it to conduct additional investigations against other people or for other offenses.
But what of the digital “plain view” doctrine, where agents “stumble” upon evidence that is nonresponsive to the warrant but, well, good stuff?
The article then revisits the author’s earlier conclusion that courts can achieve that result by eliminating the plain view exception for computer searches. While still a possible approach, eliminating the plain view exception raises underappreciated doctrinal puzzles.
The better path is for courts to rule that the Fourth Amendment imposes use restrictions on nonresponsive data because use transforms the underlying seizure from a justified and modest step needed to execute the warrant to an unjustified and invasive seizure unrelated to the warrant itself.
This is a curious theoretical shift. It seems to be more concerned with semantics than with any pragmatic difference, so it doesn’t appear to advance any material Fourth Amendment concern.
But the key problem can be clearly seen in the rationalization for the shift, and that’s important:
…use transforms the underlying seizure from a justified and modest step needed to execute the warrant to an unjustified and invasive seizure unrelated to the warrant itself.
Orin blithely calls the seizure of non-responsive digital content, the general warrant, “a justified and modest step.” This is a value judgment of the worst sort, that the government’s need to seize trumps privacy when seizure cannot be accomplished within the constraints of the Fourth Amendment’s specificity requirement.
While the prosecutorial concerns are limited to what can be used to obtain a conviction, the citizens’ concerns are the protection of private information from prying government eyes. If there is no basis for a warrant to seize that lovely picture of you and your spouse at the lake, then does the fact that it’s on someone’s hard drive give government agents the right to see it?
It’s not just that they can use it, or use it against you, but that they can see it at all? What gives the government the right to take it all, see it all, know it all, in the first place?
There is no exception to the Fourth Amendment that when it’s really, really hard to comply by limiting seizures to that for which probable cause exists and specified in a search warrant, the government gets a free pass on a general warrant with only restrictions on the back end. Orin assumes that this must be allowable or the government won’t be able to seize computers, because computers, essentially by definition, are going to contain tons of non-responsive data as well as whatever the government has authority to seize.
Tough nuggies. The government’s need to seize is not more valuable than my right to privacy, And once the agents watch my kid’s third grade class play, no law can make them unwatch it. That’s the evil the Fourth Amendment protects against, not just its use in a court proceeding or investigation. They don’t get to see it at all.